Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-03

and L. A. Hinchman; that defendants.
the Waco Artesian Well Anger Co., were
q partnership company of G.. 2. Shattuck
(the appellsnt), G.. U. Curtis and G.
Scranton; that the defendant gave ap-
pellees an order in writing as follows, to-
wit: "Waco, Tex, Oct. IL, 1856 "A
Hinchman & Son, Waco: Order US ct
once By freight 800 feet cable hoWser,
laid Pinch; one Finch Z bit 81 inch stem
standard screw 3-inch, drill stem 10
feet long SHIN. standard screw. and one
set jars 81 inches, one rope socket TO f1s
pinch rope. (Signed) Waco Artesian
Well Anger Co. G. Scranton" That
sppellees procured al OF said articles,
the total cost of which Yves $500 81,
that the goods arrived and were rendered
to defendants, who refused to receive
them, that appellees were damaged by
the refusal Of the defendants TO take the
goods the sum of 1920 81, and
prayed judgment therefor. Defendant
G. U. Curtis, fled denial of
his being member of the defendants
partnership, and of his liability for the
goods. Defendant G. P. ShRttuck,
pleaded denial of partnership and non est
factum; that he had on October u, 1886,
agreed to order from plaintiffs the tools
in question, for his co-defendant, c..
Scranton, who was to pay defendant for
them out OF his earnings in boring wells;
that plaintiffs knew this, and knew the
kind of tools required and the purpose
for which they were desired, and that
they were needed Immediately to get the
benefit of the we'll boring season, in the
fall, and plaintiffs agreed to deliver the
tools required in three weeks time; but
that the tools did not arrive until
the season for boring wells
was over, and that time was
OF the essence of the contract
with plaintiffs; and he also pleaded that
the goods were not suitable for the pur-
pose for which they were required. Judg-
ment was rendered in favor of G.. .. Curtis
against plaintiffs and in favor Of plain
tiffs against Shattuck & Scranton, COM
posing the defendant partnership for
$287 81. Exceptions to the petition were
fled, but not acted upon by the court be
low. Held: Exceptions to petition not
called to attention of the court non-acted
upon are considered as waived. Also
held: Time was not of the ess ence CT
the above mentioned contract. In suit
against partnership when the same IS
not proven judgment can be rendered
against any OF the individuals sued who
are shown to be liable. Affirmed. White,
2. J.
J.B. Wedgeworth VS.. Jasper Wiste;
sppea! from Uvalde county. This suit
was instituted by appellee against appel
LIANT to restrain appellant from gathering
and selling fortY-fi five head of beef cattle,
which was alleged to be under the care
snd management Of appellant as agent OF
appellee, under 8 contract previously
made and entered into between said par
ties. Appellee alleged that appellant had
already gathered about twenty five head
of eaid cattle, and that he had thereby
been damaged in the sum of 800, and
that by reason Of the Wsnton and ma
licious acts Of appellant in gathering said
cattle he had been damaged in the further
sum of $3.50, which amount he claimed as
exemplary damages. Defendant plead
the contract between him and plaintiff,
alleging that under the terms
Of said contracthe had q righ5 to gather
and sell ssid cattle and receive 10 per
cent. OF the proceeds of such sale. Ex-
ceptions were taken to defendants answer
and sustained. Held: Not error. The
contract pleaded did not sustain the de-
Tense, but On the other hand sustained the
petition of plaintiff. 1t was the duty Of
the court to construe the written con-
tract and its construction was correct.
Affirmed. White, 2. j